Supreme Court Clarifies Aspects of Crown Duty to Consult

In two decisions released today, the Supreme Court of Canada has outlined precisely when the Crown’s duty to consult with First Nations is triggered.

The first decision,Clyde River (Hamlet) v. Petroleum Geo-Services Inc., came in the context of the respondent’s plan to conduct seismic testing off the coast of Baffin Island. These tests would involve the creation of underwater sound waves for the purpose of measuring underwater geological resources. These tests would have occurred in the same area as Clyde River, and had the potential to impact the marine wildlife the community depends upon—and the related treaty rights regarding the harvesting of those animals. Hence, the Inuit community objected to the proceedings. As part of the National Energy Board (“NEB”) proceedings, meetings were held in Nunavut with the goal of informing members of the community about the proposed testing.

However, the answers given by representatives of Petroleum Geo-Services Inc. to questions asked by the locals were unsatisfactory: basic questions lacked substantive answers, and attempts at providing more information to the local community were apparently half-heated at best. In one example, to remedy claims that they failed to provide adequate answers to questions from the local community, the respondent filed a 3,926-page document with the NEB. However, the vast majority of this document was not translated into Inuktitut, and downloading the document proved impossible given the internet speeds available in the north.

In the second case, Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., Enbridge was seeking to reverse the flow of a section of existing pipeline that already ran across First Nations land. As a part of their application to the NEB, Enbridge held multiple meetings. The First Nation sought leave to intervene in the NEB procedure, and also wrote to the Prime Minister, the Minister of Natural Resources, and the Minister of Aboriginal Affairs and Northern Development. The process concluded when the NEB approved the proposal, stating that the conditions they imposed on the process were a sufficient safeguard; the Minister of Natural Resources responded afterwards to state that the Crown would be relying on the NEB process to fulfill the Crown’s duty to consult Indigenous peoples.

In both cases, the SCC found that the NEB review, as an administrative body empowered by the Crown, is sufficient to satisfy the Crown’s duty to consult. Yet, “the Crown always holds ultimate responsibility for ensuring consultation is adequate.” (Para 22) Determining whether an administrative board’s deliberations have satisfied the duty to consult will, however, depend on the nature of the project: where deeper consultation is required—where, for example, the project has the possibility of drastically altering the community’s day-to-day experience—the Crown may be required to take direct involvement in consulting with the Indigenous community. At the same time, if the Native community is dissatisfied, or feels that the duty to consult is not properly being met, it has the obligation to request direct Crown involvement as soon as is feasible.

Ultimately, the SCC ruled in Clyde River that the consultation was utterly inadequate, and that the Crown cannot then approve a project if it is not satisfied that the duty to consult has been met. The ruling in Thames First Nation, however, stated that the NEB had satisfied the duty given the appropriate degree of consultation in relation to the relatively minor project that was being proposed: the changes were going to be made on land that Enbridge had already had a right of access to, and to a pipeline that had already been built.

This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.